Woman Sues 12 year-old Nephew for Breaking Her Wrist - Will he be held liable?

A Manhattan woman is seeking to sue her nephew for breaking her wrist after he jumped into her arms to give her a hug - she claims he acted unreasonably in doing so.

The Human Resources manager Jennifer Connell is suing her nephew for an incident which occurred at his eighth birthday party in 2011, where his over-excitement to greet her caused Connell to fall and break her wrist.

Connell claims this was "unreasonable" behaviour and is seeking to claim $127,000 in damages from the 12-year-old whose mother passed away last year. The boy seemed confused in court this week when Aunt Jennifer described him as always being "very loving, sensitive" - and yet she is suing him. We are confused too.

The incident occurred when the boy was riding his first two-wheeled bike at his home and suddenly dropped it when he seen his Aunt. Connell said in court:

"I remember him shouting, 'Auntie Jen, I love you!' and there he was flying at me,"

Connell elaborated that she did not complain at the time about the injury she suffered, but claimed that since the accident her life had been "very difficult". She allegedly elaborated with one such example of this incredibly difficult life she has been leading:

"I was at a party recently, and it was difficult to hold my hors d'oeuvre plate,"

Whilst we are not entirely sure how much in damages 'difficulty holding an hors d'oeuvre plate' would attract, we can look at the case more generally to see if the boy could be held liable for the injury under UK personal injury law.

When will a child be held liable for a personal injury?

Whilst it can be difficult to asses when an adult will be held liable for negligent conduct, this problem becomes even more complex where the defendant in the case is a child. However, guidance can be taken from previous cases to assess when a child will be deemed to be liable for causing a personal injury.

In Orchard v Lee, two boys were playing in the school ground and injured a lunchtime assistant who was supervising them. The two boys were chasing each other in the play ground, the defendant began running backwards taunting the other child when his head made contact with the cheek of the playground supervisor causing him significant injury. The issue in this case was whether the boy had breached his duty of care. The boys had been playing in a playground - a common place to find 13 year-old boys playing, and there were no rules relating to running that they should have been adhering to.

The Court of Appeal determined that the determination of whether the boys actions amounted to negligence and a breach of his duty of care was to be determined by whether his conduct had 'fallen below the standard that should objectively be expected of a child of that age'.

Furthermore, Lord Justice Waller raised the threshold for carelessness for children saying '...for a child to be held culpable the conduct must be careless to a very high degree' and subsequently'where a child of 13 is partaking in a game within a play area, not breaking any rules, and is not acting to any significant degree beyond the norms of that game, he or she will not be held culpable'.

So, how would this apply to the over-enthusiastic 8-year old nephew? The case described about outlines that all circumstances would be taken into account when determining liability. Had an adult run into Jennifer Connell, the case would be very different. However, an eight year old could not be expected to anticipate his aunts injury from the way he acted. Children may however be expected to understand very simple acts of negligence, such as if he had deliberately tripped his aunt causing her injury (even if causing injury was not intentional). This point was also stated almost humorously in a High Court of Australia case, McHale v Watson, where the judge said:

'...children, like everyone else, must accept as they go about in society the risk from which ordinary care on the part of others will not suffice to save them. One such risk is that boys of twelve may behave as boys of twelve...'

Should Connell have been more wary of a running eight-year-old? Probably more than an eight-year-old should have been of the danger of hugging his aunt.